[Amended 3-6-1995]
A.
There is established a Board of Adjustment to consist
of not less than three nor more than five members who shall be residents
of the Town and who shall have knowledge of the problems of urban
and rural development and who, at the time of appointment and throughout
the term of office, shall not be candidates nor members of the Town
Council nor employees of the Town. The Mayor shall appoint such members
of the Board of Adjustment, and all such appointments shall be confirmed
by a majority vote of the elected members of the Town Council.
B.
All appointments shall be for a period of three years,
provided that terms of the original members shall be established in
such a manner that the term of at least one member shall expire each
year, and the successor shall be appointed for a term of three years.
The Board of Adjustment so selected shall elect from among their own
number a chairman and a secretary.
C.
Any member of the Board of Adjustment may be removed
from office by the legislative body for cause after a hearing by a
majority vote of all the elected members of the Town Council. A vacancy
occurring otherwise than by the expiration of term shall be filled
for the remainder of the unexpired term in the same manner as an original
appointment.
A.
Meetings of the Board of Adjustment shall be held
at the call of the Chairman and at such other times as the Board may
determine. The Chairman, or in his absence, the Acting Chairman, may
administer oaths and compel the attendance of witnesses and the production
of records. All meetings of the Board shall be open to the public.
Minutes shall be kept of all meetings by the Secretary, who is not
a member of the Board. These shall show the vote of each member upon
each question, or if absent or failing to vote indicating such fact.
The Board shall also keep records of its examinations and other official
actions, all of which shall be immediately filed in the office of
the Board and shall be a public record.
B.
The Board shall adopt such rules and regulations as
may be necessary to carry into effect the provisions and purposes
of this chapter.
C.
Appeals to the Board of Adjustment may be taken by
any person aggrieved or by any officer, department, board or bureau
of the municipality affected by any decision of the Zoning Commission.
Such appeal shall be taken within 30 days of the issuance of such
order, together with application fees, as provided by the rules of
the Board by filing with the officer from whom the appeal is taken
and with the Board a notice of appeal specifying the grounds thereof.
The officer from whom the appeal is taken shall forthwith transmit
to the Board all the papers constituting the record upon which the
action appealed from was taken.
[Amended 9-7-1999]
D.
An appeal stays all proceedings in furtherance of
the action appealed from, unless the officer from whom the appeal
is taken certifies to the Board of Adjustment after the notice of
appeal has been filed with him that, by reason of facts stated in
the certificate, a stay would in his opinion cause imminent peril
to life or property. In such case proceedings shall not be stayed
otherwise than by a restraining order which may be granted by the
Board or by a court having jurisdiction on application on notice to
the officer from whom the appeal is taken and on due cause shown.
E.
The Board of Adjustment shall fix a reasonable time
for the hearing of the appeal, give public notice thereof, as well
as due notice to the parties in interest, and decide the same within
a reasonable time. Upon the hearing any party may appear in person,
by agent or by attorney.
F.
Property
posted with notice. The Town Manager shall cause to be posted at one
or more prominent and easily visible places on the property which
is the subject of the Board of Adjustment hearing, on eighteen-inch-by-twenty-four-inch
yellow cardboard, a public notice setting forth the date and time
at which the Board of Adjustment has scheduled the hearing, the name
of the party requesting the Board of Adjustment hearing, the application
number assigned to the hearing request (if any), a description of
the property involved, and a statement, in plain language, of the
nature of the matter involved. The notice shall also include Town
Hall's address and telephone number for interested parties seeking
further information on the hearing. One such notice sign shall be
posted for each street on which the subject property fronts. It shall
be the responsibility of the party who has requested the hearing,
and not the responsibility of the Town, to maintain the notice signs
in good condition during the posting period. Said notice sign or signs
shall be posted at least 15 days prior to the hearing and shall remain
posted until the Board of Adjustment has taken a final action upon
the requested hearing.
[Added 11-7-2022]
The Board of Adjustment may:
A.
Hear and decide appeals where it is alleged that there
is error in any order, requirement, decision or determination made
by an administrative official in the enforcement of this chapter or
of any ordinance adopted pursuant thereto.
B.
Hear and decide special exceptions to the terms of
this chapter upon which the Board is required to pass under such chapter.
C.
Authorize upon appeal in specific cases such variance
from the terms of this chapter as will not be contrary to the public
interest where, owing to special conditions, a literal enforcement
of the provisions of this chapter will result in unnecessary hardship
or exceptional practical difficulties and so that the spirit of this
chapter shall be observed and substantial justice done.
[Amended 9-7-1999]
D.
In exercising the powers provided in Subsection A of this section, in conformity with the provisions of this chapter, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made and, to that end, shall have all the powers of the officer from whom the appeal is taken.
A.
Any person or persons, jointly or severally aggrieved
by any decision of the Board of Adjustment, or any taxpayer, or any
officer, department, board or bureau of the Town may present to the
Superior Court a petition, duly verified, setting forth that such
decision is illegal, in whole or in part, specifying the grounds of
the illegality. Such petition shall be presented to the court within
30 days after the filing of the decision in the office of the Board.
B.
Upon the presentation of the petition, the court may
allow a writ of certiorari directed to the Board to review such decision
of the Board and shall prescribe therein the time within which a return
thereto must be made and served upon the relator's attorney, which
shall not be less than 10 days and may be extended by the court. The
allowance of the writ shall not stay proceedings upon the decision
appealed from, but the court may, on application, on notice to the
Board and on due cause shown, grant a restraining order.
C.
The court may reverse or affirm, wholly or partly,
or may modify the decision brought up for review.
In the granting or recommending of variances under Delaware Code, Title 22, Chapter 3, Subchapter II, § 327, a time limit of one year from the date of approval shall be set within which time the owner shall secure a building permit from the Zoning Officer and must commence construction which shall be diligently pursued to completion. Otherwise the variance granted shall become null and void. No relief shall be granted or action taken by the Board of Adjustment unless such relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of this chapter.
